Let us assume
that the following two principles represent sound public policy:
1) Racial discrimination in regard to employment is a bad thing;
and, 2) hiring and promotion should favor the best qualified
applicant for the position.

Consider, then,
some typical cases in which workers are to be hired, promoted,
laid off or demoted:

Case 1) An employer
is of the same "race" as his son-in-law and gives preference
to the son-in-law, even though there is another applicant of
a different "race" who is better qualified for the
position under consideration.

Would that
constitute racial discrimination? If not, at what distance of
affinity--kinship, friendship, private referral, personal obligation,
school (or union) tie--would the same sort of favoritism become
racial discrimination?

A study done
in 1983 regarding job discrimination against Catholics in Northern
Ireland noted that the still prevailing practice of hiring workers
on the informal recommendation of friends and family of the prospective
employee "tend[s] to reproduce the existing patterns of
job distributions" as between Protestants and Catholics.
The study, therefore, urged the adoption of the principle that
the employer "should not recruit new employees on the recommendation
of existing employees."1 Would the insistence upon such
a policy in the United States help to reduce racial discrimination
in employment and to favor the best-qualified applicants? Would
that not be an acceptable form of affirmative action?

Case 2) Applicant
A becomes aware that Applicant B is better qualified for the
job both are seeking.

Should applicant
A persist in trying to beat out applicant B for the job? If Applicant
A does persist, is he or she not promoting discrimination in
favor of the less qualified applicant? In so doing, is not applicant
A, as citizen A, deprived of moral grounds for attacking affirmative
action as a violation of "merit" principle?

Case 3) In recognition
of the effect that historical experience may have had in delaying
or otherwise interfering with U. S. veterans in starting or maintaining
their job careers, they are given extra points on civil service
exams, as a matter of public policy. May a non-veteran justifiably
challenge this veterans-preference policy on the ground that
he or she was in no way responsible for the interruption of a
veteran's career by induction into the military; and indeed may
not have yet been born when that involvement occurred?

If a challenge
to veterans' preference on such grounds is rejected as contrary
to public policy based on historical reasons, what weight can
be given to a challenge to a public policy of affirmative action
designed to make up for historical impediments to career advancement
by African-Americans on the grounds that the complainant was
not even alive when such impediments were imposed. I cite just
two such examples of how the basis for today's persisting pattern
of racial preference in employment was put in place a century
and more ago.

In the years
1840-65, "whites" drove African-American wage-workers
out of longshoring, tobacco manufacture, carting, table-waiting
where African-Americans had been regularly employed since the
founding of the Republic.2

In the late
nineteenth century, when ninety percent of the African-American
population of the country lived in the South, the "Cotton
Mill Campaign" established that region's flagship manufacturing
industry with an employment policy that deliberately aimed "to
keep that avenue open to the white man alone," because "the
white mill workers ought to be saved from negro competition."3

Case 4) A quota
of jobs for African-Americans leads to a complaint that such
a policy is racial discrimination against "whites,"
that it disregards the need to reward merit, and that there is
no overriding public interest served by quotas.

What is it
but white racism to reserve the criticism of quotas, goals, and
timetables favoring opportunity for African-Americans, while
ignoring other "quotas" that are, or have been, far
more widely imposed and practiced?

Take the quotas
in the United States Constitution. Prior to the Civil War, the
slaveholding States had a quota of additional representation
in Congress, proportioned to three-fifths of the number of African-Americans
they held in bondage.4 That quota made it possible for the slaveholding
states to dominate the United States government from the 1789
to 1860.

After the Civil
War (by virtue of a provision of Amendment 14, but one that was
in effect nullified by the Hayes-Tilden Deal of 1876), those
same states were to have their Congressional quota reduced in
proportion to the number of disfranchised African-Americans,
thus diminishing the weight of the franchise of whites in those
states.5

Or, why is
it that our "quotaphobes" can seem completely at peace
with numerical quotas in our Constitution that absolutely disregard
the question of merit for office, or deliberately negate the
principle of one person one vote--quotas that are in full force
to this very day? They are content that the United States Constitution
in effect bars any two persons from the same state from serving
together as President and Vice-President even if those two are
the best qualified for those positions.6 They take no exception to the
inequity of the Constitutional quota of two Senators per state,7
whereunder Wyoming, with a voting population of less than 200,000,
gets two Senators, equal in national governing authority to the
quota-limited two Senators from California, a state with a voting
population more than 50 times that of Wyoming, thus diminishing
the political voice of the California voter to a mere fraction
of that of the Wyoming voter in this aspect of governmental affairs.
(Substantial discussion of these matters may be left for another
forum; they are cited here merely to draw attention to the "two-eyed-mule-one-eyed-argument"
tendency of the opponents of affirmative action when it comes
to the subject of "quotas.")

More to the
point of "racial preference," is the secret quota by
virtue of which for nearly half a century, even by official government
estimates, the chance of avoiding unemployment has been maintained
at twice as great for "whites" as for "not-whites."
When the Humphrey-Hawkins Bill passed in 1978, defining "full
employment" as four per cent, the "White" unemployment
rate was 4.5%, while the "Black and other" rate was
11.9%. In 1996, when "full employment" had been "achieved"
by sheer redefinition as just under six per cent, the "White"
rate was less than 5%, while the "Black" rate was over
10%.8 When a numerical ratio remains constant for nearly
five decades, it is a quota; the failure of the opponents of
affirmative action to acknowledge this instance of it shows the
one-sidedness of their pretended concern with "doing away
with quotas to avoid racial preference."

Case 5) Tens
of thousands of workers are to be employed by contractors in
privatized service operations in large municipalities, and the
contractors are bound to abide by principles of affirmative action,
to assure African-Americans and Latinos a share of the jobs proportional
to their presence in the labor pool, but the rule is denounced
as a "quota" principle, by its very nature unfair to
"whites," and a violation of the merit principle of
employment.

The "white
ethnic" quota system, an integral aspect of big-city politics,
driven by political job patronage, has prevailed in this country
for more than a century. In their classic study, Beyond the
Melting Pot, Nathan Glazer and Patrick Moynihan describe
New York City, a typical case:

Ethnic considerations
have always been primary in New York City politics, where the
three top spots of each party are regularly divided among a Jew,
and Italian, and an Irishman....[and] the old Board of Education
was regularly divided among three Jews, three Catholics and three
Protestants.9

Instead of
denouncing such notorious practices, the authors call for more
of the same, arguing that "the ethnic pattern offers the
best chance for a humane and positive adaptation to group diversity."10
This facile and politically popular notion is not merely a justification
of the historically white supremacist system of "ethnic
preference," but also a proposal to guarantee that it be
preserved as long as possible in the name of "humaneness."
Certainly it should not be allowed to give shelter to opponents
of affirmative action who resort to the "immigrant ladder"
fiction of social mobility to sidetrack the question of racial
discrimination against people, many of whom have family roots
that go back to the American Revolution and beyond, and many
other "not-whites" who became immigrants not because
they crossed the border, but because the border crossed them
in the course of "Manifest Destiny."

"Class-based preference"
is no answer to racial discrimination

Today, the
"ethnic" ladder notion is amended by a theory of "class-based"
rather than "race-based" government policy. A number
of opponents of "racial preference" have advocated
this approach. The argument is that "class preference"
is color-blind and thus avoids unfairness to "whites,"
while, merely by the law of probabilities, "class preference"
would at the same time "disproportionately benefit those
who have suffered most under our nation's history of [racial
or gender] discrimination...."11

However well-intentioned
this proposal may be for disposing of the contentious question
of "race" by folding it into "class," analysis
makes its fatal fallacy apparent. "Class preference"
is the whole point of capitalist society; why strive to accumulate
class-defining personal or corporate wealth if it does not carry
with it corresponding political, economic and social privileges
or "preferences"? What is proposed here is not merely
apportioning the tax burden according to ability to pay, but
altering social rank by the promotion of the those in the lower
ranks relative to the those in the higher ranks. It is hardly
to be expected that the strident opponents of even progressive
taxation and government, among whom opposition to affirmative
action is almost universal, will be persuaded to take this supposedly
alternate route to racial equality. Nor can they be expected
to enlist as supporters of "reverse class discrimination"
whereby those in each quintile of wealth-holders take precedence
over the hard-earned(?) "class preference" of the one
above, on the basis of inverse relative rankings, as determined
by layers of bureaucrats, with respect to parental wealth, income
and occupation; the quality of educational opportunities; and
the stability of family structure.12 Let it be noted in passing
that, contrary to the assumption made by its advocates, progress
along this line would diminish the impact on racial discrimination
because it would reduce the proportion of African-Americans in
the favored categories, even as the general competition for the
benefits of "reverse class discrimination" was intensified.

Proponents
of this scheme of reverse class discrimination suggest that,
despite such opposition, a politically favorable constellation
could be achieved by quintile-splicing until over half the population
were included among the favored class.13 This strategy bears the same
Achilles heel that has foredoomed leveller programs of the past,
the white blindspot, the denial of the special character of racial
oppression of African-Americans.

Those in the
United States to whom it has been given historically to decide
such matters have found it expedient to have "class preference"
modified by "white-race preference." They have thereby
established and maintained a form of oppression distinct from
class oppression, namely, racial oppression. The hallmark, the
informing principle of this "peculiar institution"
is not the social preference of "whites" in a given
socio-economic quintile over African-Americans in a lower quintile,
but over African-Americans of the same or higher socio-economic
quintile. It is precisely this prevailing social anomaly that
advocates of "class-based preference" refuse to take
into account.14

Whenever the
politics of wealth redistribution--whether "land to the
tillers," "populism," "New Deal," or
"War on Poverty"--has been proposed, and, in some cases,
actually attempted, the "race card" has proved to be
trumps, played as "Negro domination," "Dixiecratism,"
and outcries against "welfare queens," and "poverty
pimps."

The current
advocates of the "reverse class discrimination" strategy
of social reform refuse to acknowledge the fact and the nature
of racial oppression of African-Americans. It is precisely because
of this attempt to avoid the issue of "race" that the
"reverse class discrimination" strategy is doomed to
the fate of earlier movements for fundamental social reform in
this country. The multi-quintile alliance would be inescapably
doomed soon after our radio talk show hosts discovered the first
instances in which African-Americans have been given preference
over "white" applicants in a higher socio-economic
quintile. Race-based affirmative action is an essential consciousness-raising
pre-conditon for making it possible to assure social reform in
the general interest of the lower socio-economic quintiles.

Affirmative action is not a barrier
to, but a necessary condition for selecting the best qualified
applicant

It is to be
hoped that such arguments will serve to put in perspective the
complaint that affirmative action brings about "racial preference"
for "not-whites," and thus unfairly discriminates against
better qualified "white" competitors. Being of such
very recent vintage, such "White" concern for the centuries-old
phenomenon of racial preference is rendered suspect. The same
may be said of the sudden espousal of the principle of "racial
equality of opportunity," merely for the partisan purpose
of opposing it to "racial equality of result." That
common argument necessarily rests on the assumption of, or at
least conveys the suggestion of, "white" racial superiority.

As a matter
of American public policy broadly considered, affirmative action--obstructing
racial discrimination against African-Americans and other "not-whites,"
and gender discrimination against women--is not a barrier to
assuring that the best qualified person will be employed, but
rather a necessary condition for achieving that result. It should
not be discouraged, but made ever more effective. It is far less
likely to result in relative merit deficiency than preferential
hiring by family connection, veterans status, or by white "ethnic"
category, or by "old boy" connections.

Affirmative Action as a Civil Right

But, even when
the opponents of affirmative action lose every argument on the
merit-and-fairness issue, they shift the burden of proof. In
this way they avoid having to deny the facts of "patterns"
of discrimination, historical or contemporary; they simply deny
that such patterns are necessarily relevant, except where individual
complainants individually can prove deliberate discrimination
by the defendant.

This turn in
the argument contains a challenge to even wider issues of public
policy than just affirmative action. It assaults the basic principle
of civil rights law as represented by Brown v. Board of Education,
the Voting Rights Act of 1965, and the rules for preventing racial
prejudice in the constitution of jury panels. According to that
principle, the underrepresentation of African-Americans, for
example, in the make-up of school populations, voting populations,
and jury pools, constitutes prima-facie evidence of racial discrimination,
and places the burden of proof on the accused supervisory entities
in such instances. Thus the enemies of affirmative action remind
us that affirmative action is an integral part of the general
cause of civil rights; to retreat on this issue is to unravel
the fabric of the hard-won gains of decades of struggle against
racial and gender discrimination. Therefore, let this be our
resolve: Not one step backward!

8 See Tables on
unemploymet rates in successive editions of the annual Economic
Report of the President (Government Printing Office, Washington,
D. C.); and U.S. Bureau of Labor Statistics, Monthly Labor
Review, February 1997, p. 53.

11 Richard D.
Kahlenberg, The Remedy: Class, Race, and Affirmative Action
(New York, 1996), p. xii. This approach, it is said, has the
incidental benefit that, "because blacks are disproportionately
poor, they would [[under "class- based" preferences]]
still continue to reap a disproportionate share of the benefits,
but without engendering resentment or feelings of injustice within
the white community" (The Remedy, jacket blurb).
In the discussion between opponents of affirmative action and
President Clinton and Vice-President Gore on 19 December 1997,
Linda Chavez makes a congruent argument ("Excerpts From
Round Table with Opponents of Racial Preferences," New
York Times, 22 December 1997). However, another participant,
Abigail Thernstrom, author with her husband Stephan Thernstrom
of America in Black and White: One Nation Indivisible,
deplores even this sort of concession to remedies for social
inequities, as an example of "victim status creep"
(Abigail Thernstrom, "A Class Backwards Idea: Why Affirmative
Action for the Needy Won't Work," Washingnton Post,
11 June 1995, C1, C2, cited by Kahleberg, p. 87).